Declaratory award held enforceable by English court: a healthy move for arbitration?
- By Phillip Capper, White & Case LLP,
for White & Case
Following the path of the hotly debated West Tankers decision, in African Fertilizers v BD Shipsnavo, the English Commercial Court held that a declaratory award is enforceable, allowing judgment to be entered on the same terms as the arbitral award. Such an order enables a party to obtain the material benefit of the award and indicates the continuing trend of the English courts in favour of arbitration and the enforcement of arbitral awards. However, this approach does raise questions for the health of the inter-twining co-existence of the arbitration and court systems.
The declaratory award (on the tribunal’s jurisdiction) was made pursuant to an arbitration agreement contained in a bi [...]
A new year, a new start in India
On Tuesday, 10 January 2012, a Constitution Bench of the Indian Supreme Court began hearings in Bharat Aluminium v Kaiser Aluminium (Civil Appeal No. 7019 of 2005) and related matters to reconsider its earlier judgment in Bhatia International v Bulk Trading SA, (2002) 4 SCC 105 (“Bhatia”).
In Bhatia, the court held that the Indian courts could intervene to order interim measures of protection even in relation to arbitrations seated outside India. The court’s jurisdiction was invoked by a party seeking interim measures of protection in relation to an ICC-administered arbitration seated in Paris. Although section 9 of India’s Arbitration Act expressly empowers Indian courts to grant i [...]
Swiss Federal Supreme Court provides guidance on rules of State immunity applicable to enforcement of ICSID awards
and Sandrine Giroud, Lalive
In a decision issued on 23 November 2011, the Swiss Federal Supreme Court gave some welcome guidance on the rules of immunity applicable to the enforcement of ICSID awards in Switzerland (Decision 5A_681/2011 dated 23 November 2011 – The published decision is redacted but mentions the date of the ICSID award and the defendant State).
The Court rejected an appeal of the Geneva Debt Collection Office’s (the “DCO”) refusal to attach assets held in Geneva by the International Air Transport Association (IATA) in the name of Kyrgyzaeronavigatsia, a Kyrgyz State company. The applicant (probably the claimant in the underlying ICSID arbitration, Turkish company Sis [...]
The right to a tribunal appointed expert
In a decision dated 14 June 2011 and published on 7 July 2011, the Swiss Federal Supreme Court dismissed an appeal to set aside an arbitral award holding that the right to the appointment of an expert by the tribunal is not violated where the respective request was not made in a timely manner and in proper form (4A_617/2010).
Decision
X (a Turkish company) and Y (a Polish company) were in dispute over the question of which party was responsible for the delays in the execution of the contractual work. The dispute was brought before an ICC tribunal seated in Zurich. With respect to the disputed question, each party submitted to the arbitral tribunal a technical expert report.
In an award of 30 [...]
U.S. Court of Appeals Illustrates Obsolescence of Law that Allows Court to Consider Timeliness Challenge to Arbitrable Claim
On March 22, the United States Court of Appeals for the Second Circuit held in Bechtel do Brasil Construções Ltda. v. UEG Araucária Ltda., 638 F.3d 150, that the question whether a claim subject to arbitration was time-barred was for the arbitrator, not the district court, to decide, notwithstanding a New York state law that permits an arbitral party to assert a limitations defense in court. Above all, the Bechtel decision illustrates the obsolescence of laws like this New York provision, whose usefulness is highly questionable and whose application is effectively limited to situations where it is unnecessary in the first place.
In 2000, UEG Araucária, a Brazilian energy company, entere [...]
Jivraj v. Hashwani – Are Arbitrators Employees?
One of the key issues that now awaits the decision of the U.K. Supreme Court in Jivraj v. Hashwani is whether there is a contract between the parties and the arbitrators, such that the arbitrators may be considered “employees” of the parties (and thereby subject to the law prohibiting discrimination by employers)?
If there is such an “employment” contract, this would be one in which:
• the “employer” cannot give instructions as to how the “employee” is to work or what outcome he is to achieve;
• the “employer” cannot remove the “employee” without an order of the Court;
• the “employee” is immune from suit; and
• the “employee” owes a duty to act [...]
